By Geoffrey C. Westbrook and Joshua M. Henderson

Just when one might have thought California employment law couldn’t get any stickier for employers, in January 2014 the California Legislature turned up the heat by expanding meal and rest break penalty provisions. Now there’s a new penalty for failure to provide “cool-down,” or recovery, periods to prevent heat illness.

Before, heat illness prevention laws were enforced only by the limited resources of Cal-OSHA. Now, newly amended Labor Code Section 226.7 authorizes private enforcement through class, individual, and multi-plaintiff actions, as well as by the DLSE. Monetary incentives, in addition to ambiguities on many aspects of the law, will likely trigger increased Cal-OSHA enforcement and new litigation, just as the remedies for meal and rest break violations have produced a heat wave of class action litigation. Talk about a scorcher!

But What is a “Cool-down” Period? California employers with “outdoor places of employment” must implement a heat illness prevention program, including allowing and encouraging employees to take a “cool-down rest in the shade for a period of no less than five minutes at a time when they feel the need to do so to protect themselves from overheating.” During these periods, employees must get continuous access to shade and drinking water.

While these obligations existed for almost a decade under Cal-OSHA’s oversight, private enforcement officially began January 1, 2014 with the amendment to Labor Code Section 226.7. Now, “an employer shall not require an employee to work during a meal or rest or recovery period” required by law. As a penalty, employers must pay non-exempt employees one additional hour of pay for each workday in which a meal or rest or recovery period is not provided. Penalties are cumulative, meaning it is now theoretically possible under Section 226.7 for an employer to incur three penalties in a given workday for each affected employee.

So, What are “Outdoor Places of Employment?” This term, not defined in the regulations, may seem self-evident. “Outdoor” really means “out of doors” in an open air environment. But how much time must one spend out of doors to make it a “place” of employment? Reasonable minds could differ here: is 50% of a workday spent outdoors sufficient to trigger the law, or will a mere 25% suffice?

Recovery Periods: A “Hotbed” for Litigation? There are no published decisions yet on cool-down periods, and the law is rife with ambiguities that only litigation will resolve. These uncertainties, and the prospect of penalties that will be very large when considered on a cumulative basis, may prompt private litigants to initiate civil actions against unsuspecting employers in industries with some outdoor work that haven’t traditionally been the focus of enforcement initiatives. These industries may include engineering, warehousing, carwash, outdoor recreation, automotive sales, security, country clubs, valets, summer camps, and janitorial businesses.

The following are areas where employers may face “cooling down” challenges:
Continue Reading Avoid the Summer Heat! Sweat the Details of California’s “Cool-Down” Periods and Avoid the Burn of Wage and Hour Class Litigation

Just in time for International Workers’ Day (May 1), on April 30, 2014, the California Labor Commissioner announced a new statewide public awareness campaign to educate workers about their rights.  Messaging in multiple media (website, print and radio spots) will include information about minimum wage, overtime and meal and rest break laws.  The campaign, entitled “Wage Theft is a
Continue Reading Special Post: California Labor Commissioner Kicks Off “Wage Theft Is A Crime” Educational Campaign

While the Stakes At Issue In Actions Before the DLSE Continue to Grow, So Do The Deterrents And Obstacles to Pursuing Appeals of DLSE Orders in Court

By John R. Giovannone

Last week, the DLSE dropped a bomb.  On April 3, 2014 the California Division of Labor Standards Enforcement (“DLSE”) issued a News Release on its website with the tag line “California Labor Commissioner orders Southern California Company to return over $336,000 to janitorial workers for unpaid wages.”  The order, which also imposed over $33,000 in penalty assessments, addressed claims of wage and meal/rest break violations on behalf of roughly 115 hourly workers over a three year period.  Setting aside the merits of the action, a liability finding of that magnitude in court would ordinarily result in the employer running to appeal.  But, the chances of an appeal are considerably lower here because the liability finding was issued by the DLSE.     

Why don’t more employers appeal adverse DLSE Decisions?  Historically, employers facing adverse orders, decisions, or awards of from the DLSE wouldn’t appeal those decisions in court for reasons that have little to do with the merits of their would-be de novo appeal, such as:
Continue Reading Wait — If I Want To Appeal, I Have To Come Up With How Much How Fast?

The California DLSE has been busy!  Following the May release of A Report on the State of The Division of Labor Standards Enforcement  by Labor Commissioner, Julie A. Su, the DLSE issued a press release highlighting “record-breaking results for labor law enforcement in California.”  The news is that, in 2012, the field investigators assessed 462% more in minimum wages and
Continue Reading California Department of Labor Standards Ratchets Up Enforcement Activity